dissenting:
I dissent from the denial of the petition for rehearing in this case.
The opinion holds that trial courts may circumvent the constraints of the Speedy Trial Act by any number of unreasonable delays. Even more surprising, the government not only concedes — but argues vigorously in its brief — that district court judges, since the passage of the Act, have the right to delay any hearing or decision on any pretrial motion, for as long as they want, for whatever reason they want. Calendar congestion; indecision; a lost file; or no reason at all, each suffices to postpone decisions indefinitely. Any excuse, in fact, leaves the government with no means of pursuing a prosecution.
That is exactly what happened to the government in this case. Defendants filed their first pretrial motion on November 3, 1980. The court finally held a hearing on that motion on March 25, 1981. The court, however, failed to make up its mind until ten months later. The court’s ruling was finally filed on January 19, 1982.
The government’s concession that this delay does not, under any circumstances, violate the Speedy Trial Act, leaves prosecutors defenseless against district court or defense instigated delays. It forecloses the government from seeking a writ of mandamus to compel a district court judge to decide a pretrial motion, to set a trial date, or to do anything else listed in the excludable time provisions of the Speedy Trial Act. 18 U.S.C. § 3161(h).
The defendant, of course, retains his or her rights under the Sixth Amendment, including the right to a speedy trial. U.S. Const, amend. VI. By its own hand, however, the government divests itself of its own right to pursue timely and vigorously its own prosecutions.